judgesonmerit.org

An editorial in the Philadelphia Inquirer identifies a major problem with judicial elections: money.  Citing the recent Report by Justice At Stake, the Brennan Center for Justice and the Institute on Money in State Politics, the editorial observes:

When it comes to spending money to elect state Supreme Court justices, Pennsylvania is No. 1.Unfortunately, this is not a top ranking to boast about. That’s because the river of money that flows into judicial elections creates the perception for many that justice isn’t always blind.

Money and judicial selection just should not mix; simply put, judges should not be in the fundraising business.  Merit Selection takes money out of the process of choosing judges and focuses attention on what really matters: skills, qualifications, and a reputation for honesty, fairness and impartiality.  Pennsylvanians deserve a system they can be proud of and trust to produce fair, impartial judges.

In an op-ed in the Philadelphia Inquirer, Drew F. Cohen argues that Pennsylvania must change the way we pick judges, and he offers an unlikely  model:  Iraq.  Cohen points to the issues that concerned the U.S. State Department when helping to form the Iraqi judiciary: “corruption and nepotism, but also competence and legitimacy – the same issues raised in the debate over judicial elections in Pennsylvania.”

We need not look so far away for a better judicial selection model.  Many states have been using Merit Selection for years to ensure a fair, qualified, impartial judiciary.  But Cohen’s comparison is certainly interesting.  In Iraq the High Judicial Council, an independent body, vets and appoints potential judges.  Once selected, the justices get a one-year probationary period.  If they pass a comprehensive performance review at the end of that year, they can be confirmed until the mandatory retirement age of 63.  Cohen compares this to the Merit Selection legislation pending in Harrisburg:  A 14-member citizens nominating commission would evaluate candidates and recommend the most highly qualified to the governor.  The governor would nominate from this list, and the nominee would be subject to Senate confirmation. If confirmed, the judge would serve a four-year term before standing for retention where Pennsylvanians would vote on whether the judge should serve a ten-year term.

Cohen notes that electing judges — and modern judicial elections in particular — don’t fit with our ideals of what courts and judges should be:

When the Declaration of Independence was signed on Chestnut Street, no state had seriously contemplated popular judicial elections. . . . Modern judicial elections are a far cry from the unbiased, dispassionate races originally envisioned by their supporters. Pennsylvanians are exposed to judicial campaigns replete with vitriolic attack ads, parasitic special-interest groups, and seven-figure fund-raising efforts, tarnishing the robes ultimately donned by the victors.

It seems Iraq has realized the special role judges play in a democracy:  judges must be faithful to the law, not to any particular constituency or campaign supporter. People must be confident that when they come to the courts for justice, the judges will be fair and impartial.
Cohen closes with this call to action:  “With Iraq’s judiciary leaving Pennsylvania’s in the rubble of yesteryear, it’s time for Harrisburg to make merit selection a reality.”

Yesterday’s call by Governor Rendell for the legislature to pass the pending Merit Selection bills has got Pennsylvania talking.  An editorial in the Philadelphia Daily News shares the Governor’s sense of urgency to pass the legislation and argues: “Imagine if judges didn’t have to rely on the kindness of ward leaders, or the luck of ballot position.”

In addition, the Philadelphia Inquirer has a full report on the news conference and quotes the Governor’s exclamation that there is “no excuse for not moving the legislation this year and putting the question on the ballot by late 2011.” The Inquirer also quoted PMC Executive Director Lynn Marks who explained that Merit Selection is designed to get the most qualified, fair and independent people on the appellate courts.

The Pittsburgh Post-Gazette notes that the Governor is seeking to give a jumpstart to the Merit Selection legislation.  The article quotes local State Senator Jim Ferlo on the need for reform: “The impact of the electoral system on the impartiality of judges puts the fairness of our courts in question, and now requires judicial candidates … to raise millions of dollars to run their campaigns.”

Additional coverage of the Governor’s press conference and the call for action can be found at WHYY 91 FM, the Citizens’ Voice, the Times Leader, the Patriot-News, and Gavel Grab.

The Philadelphia Inquirer today called for judicial selection reform, arguing that “The case for reforming the way Pennsylvania selects its judges keeps getting stronger.”  Citing PMC’s analysis of the fundraising and spending in the 2009 Supreme Court election, the editorial focuses on the poisonous role of money in judicial elections:

It’s the troubling influence of campaign fund-raising that continues to create the most concern about electing judges in head-to-head partisan contests.

Most Pennsylvanians say they suspect that justice is for sale because candidates for judgeships have to raise campaign funds. The big-spending 2009 Supreme Court election between Republican Joan Orie Melvin and Democrat Jack Panella did nothing to restore their fraying faith in an impartial judiciary.

The Inquirer urges action, and we hope the call is heeded:

The course for state policymakers is clear: Step in and reform judicial selection, or continue to preside over a system that erodes public confidence in justice as it’s dispensed in Pennsylvania.

In a letter to the Philadelphia Inquirer, PMC’s Shira Goodman argues that Merit Selection ends the money game that is so much a part of judicial elections.  Remember, much of the money that funds appellate court election campaigns comes from lawyers, law firms, businesses, unions and others with cases before the appellate courts.  In addition, the political parties often — like in this year’s Supreme Court race — spend big money to elect their favored candidates.

Merit selection eliminates all this spending and, most importantly, stops the flow of money from lawyers to the campaigns of judges likely to rule on their cases.

The letter also focused on the role of the public in a Merit Selection process, including: participation on the nominating commission; providing information about applicants for appellate court vacancies to the nominating commission, the Governor and the Senate during the application/evaluation, nomination and confirmation processes; and voting in retention elections to determine if judges should remain on the bench.

Critically, only the people of Pennsylvania can change the way we select appellate court judges:

Pennsylvania can change the way we select appellate judges, but only if the people vote to amend the constitution. It is time to let Pennsylvanians make this decision.

In a letter to the Philadelphia Inquirer, Charlotte Glauser argues that “Pennsylvanian’s judicial system is broken.”  According to Glauser:

As long as we continue the partisan election of judges, we deserve the poor quality of our judiciary. The time is long past to get rid of this system. Both parties are guilty of prolonging this travesty.

Glauser’s solution: “We need merit selection of judges, especially at the state appeals level.” We certainly agree with that.

All of a sudden, other people seem to be doing our work for us, that is alerting the public to the evils of money in judicial elections.  Supreme Court candidates are challenging each other about campaign contributions, and the media is all over the story.  (Check out this story on NPR’s WHYY and articles in the Pittsburgh Post-Gazette, Pittsburgh Tribune-Review, The Philadelphia Inquirer/AP, Capitolwire (subscription required), and Allentown’s The Morning Call). So, let’s talk about money.

It’s a given that to run a statewide campaign for the appellate courts, you need money.  There are sixty-seven counties in Pennsylvania, and candidates try to reach most, if not all of them.  This requires travel, television ads, radio spots, lawn signs and a good staff.  That all costs money.  Where’s the money coming from? Generally, the big givers to judicial campaigns are those who frequently litigate in the state court system: lawyers, law firms, organized groups of lawyers or bar associations, unions, and businesses.

The trouble is, these folks and entities will later appear before the judges their money helped to elect.  Who finds this troubling?  The public does — the regular folks who sometimes find themselves in court and who don’t give to judicial campaigns.  These folks are sitting in courtrooms worried that their opponents or their opponents’ lawyers have contributed to the judge’s election campaign.  This should be the last thing people in court have to worry about.  But when you elect judges, this is part of the package.

The abiding image for our courts is the statue of Justice blindfolded, signifying that judges are not swayed by personal bias, popular opinion, political expediency, or the identity of the parties.  Electing judges undermines that image.  Instead, the public imagines a judge with eyes wide open, pockets bulging with campaign cash, and knowledge of where the cash came from.

The candidates for Supreme Court are not helping to repair this image. They are fighting about who received more money from which donors. Judge Orie Melvin charges that Judge Panella received more than  $1,000,000 from the Committee for a Better Tomorrow, the political action committee of the Philadelphia Trial Lawyers.  Judge Panella retorts that Judge Orie Melvin accepted $125,000 from the same PAC and has received large donations from Republican PACs as well.

One million dollars is a lot of money, but $125,000 is nothing to sneeze at, as my nine year old son has pointed out.  Anyone coming in to court opposing someone who contributed to this PAC might justifiably be concerned about either Judge Panella or Judge Orie Melvin.  It’s not the size of the donation, it’s the fact of the donation.

The candidates’ dispute acknowledges that campaign money creates unfavorable perceptions and leads the public to believe justice is for sale.  Their debate about money is not helping to ease the public’s mind, but rather is confirming fears that campaign cash does indeed matter long after the election is over and the judge is sitting in the courtroom.

Enough is enough. It’s time to get judges out of the fundraising business and to put the blindfold back on.  Merit Selection is the answer.

Attorney Peter Vaira’s op-ed in the Philadelphia Inquirer details recent troubles plaguing Pennsylvania’s court system and offers some thoughts on causation:

Is this Huey Long’s Louisiana? What is behind these events? Part of the answer is Pennsylvania’s county government system. Each county has its own courts, its own court rules, and often its own unwritten procedures. Nor does the state attorney general have any control over county prosecutors.

Another problem is that all judges run for election. This creates a system of subtle (and often not-so-subtle) IOUs, especially at the county-court level.

All of this can foster localized criminal justice and make the courts insiders’ forums.

Vaira’s tag that the judicial election system is “a system of ious” echoes increasing public concern about the influence campaign contributions have on judges.  Increasingly, the public has come to believe that we have a system in which justice may be “for sale” to campaign contributors.

This is simply an unacceptable situation.  To restore public confidence in our courts and judiciary, we must get judges out of the fundraising business.

Last week, Pennsylvania Common Cause released a report analyzing political donations and campaign contributions by the gaming industry in Pennsylvania. The report reveals “that the gaming industry gave $4.4 million in campaign contributions to political candidates and committees in the state from 2001-08.”

Among the candidates who received contributions were some current and former members of the Pennsylvania Supreme Court. This particular fact prompted strong comments from Philadelphia Inquirer reader John R. Attanasio:

But how “surprising” was it that two justices made the list? Did they run for office “advocating slots gaming in the commonwealth”? They didn’t publicly. Or were they supported by casino money because the contributors hoped to influence their future actions on the bench?

Whatever their motivations, we know one thing for sure: [one of those justices] participated in the court’s ruling that struck down a statutory ban on campaign contributions from gambling interests. Even if that case was correctly decided, his being involved in it certainly doesn’t look good for him, or our legal system.

There are two lessons here: First, big political contributions can create at least the appearance of a corrupt influence on public policy. Second, the idea of judges’ running for election, and raising money from special interests to do so, is absurd.

Mr. Attanasio makes a good point: electing judges makes no sense.

In an op-ed in the Philadelphia Inquirer, PMC Board Chair Bob Heim explains the impact of the Caperton decision and outlines a solution to the poisonous effect of money on judicial elections:

So what does [Caperton] mean for those of us who don’t have $50 million at stake? A lot.

There’s no question that, regardless of the amount of money involved, if one side of a case contributed to a judge’s campaign, the other side will worry about it.

Some years ago, I was told of a lawyer who was sitting with a client in court, waiting for a newly assigned judge to hear his case. When the judge appeared, the lawyer whispered to his client that he was concerned, because the opposing lawyer was on the judge’s campaign committee and had contributed to the campaign. After a pause, the client whispered back, “So why didn’t you contribute?”

This story, cynical as it may seem, reflects the very real concerns and perceptions created when litigants and lawyers have contributed to the election campaigns of judges who preside over their cases.

Heim argues: “There is a simple solution to the problem of money in judicial elections: Get judges out of the fund-raising business by changing the way we choose them.”  His proposed solution is Merit Selection:

Merit selection would focus on the qualifications of judicial candidates. It would eliminate the unimportant but often decisive factors of the current system, such as ballot position, a “good name,” where one lives, and talent for fund-raising and campaigning. Because merit selection eliminates the need for candidates to win political-party support or raise large sums of money, it would open pathways to the bench for qualified men and women of all races, backgrounds, and experiences.

The op-ed concludes with some thoughts about why Pennsylvania has not yet stopped electing appellate court judges. Heim believes that legislatures who might be swayed on the topic haven’t heard enough from their constituents about this important issue.  But surveys consistently show the public is concerned about money and judges.  Heim urges Pennsylvanians “Let your legislators know you care.”